Balkinization: The Original Meaning of "Federalism"

The Original Meaning of "Federalism"

Andrew Coan

(coauthored by David S. Schwartz)

“Enumerationism” is the doctrine that the Constitution limits the United States government to its enumerated powers, and stops short of authorizing that government to address all national problems. The extent of the government’s powers, and the corresponding argument for a bill of rights to limit those powers, were the predominant issues in the ratification debates of 1787 and 1788. Anti-Federalist opponents of the Constitution objected that it could easily be read to grant sweeping implied and general powers to the new national government. In response, the Constitution’s Federalist proponents insisted that the government it established was unambiguously enumerationist. These Federalist protestations are nearly always taken at face value as powerful evidence supporting the claim that the Constitution’s original meaning was indeed enumerationist.

In a new paper called “Interpreting Ratification,” we challenge this conventional wisdom. Our challenge emerges from a historical account of the ratification debates that is in many ways familiar but emphasizes crucial nuances of nomenclature and background legal understandings that constitutional scholars have largely overlooked. In particular, the majority of delegates to the Philadelphia Convention clearly and expressly distinguished between a national government established by the People of the United States and a federal compact between sovereign states like the Articles of Confederation. They opted for the former in lopsided fashion, providing powerful evidence that the background assumptions of enumerationism did not go without saying in the founding era. To the contrary, an important subset of the ratifying generation—the nationalist Framers and their followers—understood the Constitution according to a very different set of background assumptions. Further, the text that the Convention ultimately agreed on left ambiguous whether the enumerated powers of the new national government were exhaustive or illustrative.

Anticipating controversy on these points, the Framers dubbed themselves “Federalists” and soon converged on a strategy to obfuscate the national character of the Constitution and the extent of the powers it conferred, hoping to forestall pre-ratification amendments. That strategy hinged on two closely related enumerationist arguments: First, a bill of rights was superfluous because the Constitution unambiguously granted only limited enumerated powers. It could not plausibly be read any other way. Second, the proposed Constitution was fundamentally an empowered version of the Articles of Confederation, one that adhered to the essential principle of “federal” governments—that states retained all powers and rights not expressly granted. Textual assurances to this effect, such as that contained in Article II of the Articles of Confederation, were unnecessary because the principle went without saying.

Anti-Federalists vigorously disputed both of these points, advocating a nationalist reading of the constitutional text that closely mirrored the dominant understanding of the Philadelphia delegates. As in any hard-fought political campaign, both sides engaged in their fair share of exaggeration, misdirection, and demagoguery. But there is considerable evidence that many leading Federalists did not believe their core claims and little, if any, evidence that this was true of Anti-Federalists.

For a fuller discussion of this issue, see our new article, “Interpreting Ratification.”

Posted 8:00 AM by Andrew Coan [link]